In a first-of-its-kind case, a Texas grand jury this week ruled that an animated GIF can be considered a deadly weapon. The decision stems from a December 2016 incident in which a GIF was sent via a tweet with the intention of causing a seizure in the recipient. The grand jury along with the U.S. Department of Justice issued a series of indictments against John Rayne Rivello, who is accused of sending a flashing Pepe the Frog image with the intention of inducing an epileptic seizure in Newsweek journalist Kurt Eichenwald.
Rivello allegedly was upset with Eichenwald’s critical coverage of President Donald Trump and sent the seizure-inducing image in a tweet with the message “You deserve a seizure for your post.”
FBI investigators believe Rivello created a fake Twitter account under the name Ari Goldstein to send the message to Eichenwald. According to the DOJ complaint, Rivello made it clear that his intention was to harm Eichenwald boasting in direct messages to friends that “I hope this sends him into a seizure” and “Spammed this at [Eichenwald] let’s see if he dies.”
This isn’t the first time an animated GIF has been used maliciously to trigger seizures, but it is the first time an individual has been charged. In 2008, hackers compromised the Epilepsy Foundation website, posting seizure-inducing images on the main page. Nobody was harmed in that incident, and no criminal charges were filed because the hacking group remained anonymous. The Eichenwald case is different because the image caused a seizure and the sending of it could be traced back to a single individual.
“I’m unaware of anybody being criminally prosecuted for this,” said defense attorney Tor Ekeland to NBC News. “If it’s not the first time, it’s one of the first times this has happened.”
Rivello is being charged under a federal cyberstalking law that makes it a crime to use electronic communication “with the intent to kill, injure, harass, [or] intimidate” a victim. It often is used in cases of revenge porn or emailed death threats, but this is the first time the law has been applied to a tweeted GIF. In the indictment, Rivello is accused of using a tweet, a GIF, an electronic device and his hands as a deadly weapon in an attempted assault on Eichenwald.
Some legal experts like Ekeland are concerned this case could set a dangerous precedent that could be applied in unexpected ways. “How do you know a photo can or can’t set off a medical condition? You can see the slippery slope here. Are they going to use it to ban art people don’t like because it upsets someone?” Ekeland said.